Court Cases Discuss on Misrepresentation from China [Updated]

We have recently noted an increased trend involving cases of misrepresentation allegations out of mainland China.  The success of litigants appealing these cases is extremely unpredictable.  In this post I have summarized two cases with very similar facts, and opposite results.

He v. Canada (Citizenship and Immigration), 2012 FC 33, provides a good example of how a finding of misrepresentation can occur, as well as how the Anti-Fraud Unit works to verify employment.

The facts of the case were:

  • H was a citizen of China who had been nominated by the province of New Brunswick to immigrate to Canada.
  • On March 8, 2010, H submitted an application to immigrate to Canada as a member of the Provincial Nominee Class.
  • In the application, H stated that she had worked as a sale manager at the Building Company.  The immigration officer assessing her application asked the Anti-Fraud Unit to verify her employment.
  • Officer R of the Anti-Fraud Unit called the Building Company.  He spoke to Huang, an individual at the Building Company responsible for maintaining the company’s list of employees.  Huang stated that he had never heard of H.
  • Officer R then spoke to the president of Building Company, Boss Deng.  Boss Deng stated that he had worked at the company for over 10 years, and had never heard of H.  Officer R thanked Boss Deng.  Officer R then called back two hours later to confirm what Boss Deng had said.  This time, Boss Deng stated that he had in fact heard of H, and could verify his employment with Building Company.
  • Officer R was suspicious, and reported his concerns to the immigration officer.
  • The immigration officer then sent H a letter stating that he was concerned about the authenticity of his employment, and asking H to address these concerns.
  • In response to the immigration officer’s letter, H sent the officer two faxes.  One as from Huang, who stated that he had made a mistake when he said that he had never heard of H.  The other was from Boss Deng, who stated that his first answer to Officer R was wrong, and that the second answer was right.  Both suggested that they answered the way that they did because they did not remember H, and that they did not believe that Officer R was really an officer with the Canadian embassy.
  • The immigration officer found that H had committed misrepresentation, and denied the application.  In the officer’s reasons, the officer stated that he found the original answers to Officer R’s questions to be more credible than the later answers.  He also wrote that Huang and Boss Deng may have been co-opted into changing their answers.
The Federal Court upheld the misrepresentation finding, and found that the immigration officer was entitled to give very little weight to the material which was submitted after the interview.The Court also found that it was reasonable for the Officer to find that the explanations contained in the faxes were unreasonable.

 

The He decision can be contrasted with the recent decision of Rong v. Canada, Citizenship and Immigration, 2013 FC 364. There, the Federal Court found an officer’s almost identical refusal to be completely unreasonable.  The Officer’s reasons, and the Court’s responses, were:
Officer’s Statement Court’s Answer
I gave more weight to the telephone verification report than to the information provided subsequent to the receipt of our procedural fairness letter, as this appeared to have been prepared for presentation purposes only. The officer failed to adequately explain why she preferred a telephone conversation with the employer’s receptionist over the information provided by the applicant and her employer in response to the fairness letter. By relying on the information Mr. Han provided over the telephone, the officer essentially found that the company’s December 2011 to March 2012 payroll records were falsified and that the company representatives were either not telling the truth in their letters or that the letters themselves were falsified. The officer did not explain why these documents were rejected. 

The officer’s focus on the information provided by Mr. Han to the exclusion of the documentary evidence suggests a closed mind with disregard for the documentary evidence and an absence of any true weighing of the positive and negative evidence (Paulino v Canada (Citizenship and Immigration), 2010 FC 542 at paras 59-62).

 

 

This reason does not make sense to me, given that the goal of the fairness letter was to allow the applicant an opportunity to address certain concerns and documentation issued by the applicant’s stated employer was the strongest and perhaps only way to address those concerns.

“under these circumstances verifying authorities may have been co-opted to provide false verifications” There was no evidence before the officer that the applicant may have co-opted the authorities who verified her work experience and the accuracy of the information she gave RHO over the telephone on March 26, 2012.
The payroll records she submitted indicated her time wage as RMB 3200 per month and did not list a real wage, while the applicant’s employment letter on file stated that she earned RMB 4000 per month. The officer’s CAIPS notes focus on minor inconsistencies between the information the applicant and Mr. Han gave over the phone, even though these inconsistencies were reasonably and consistently explained in the documents provided by the applicant and her employer. Moreover, many of the inconsistencies which concerned the officer were only peripheral to the core issue of whether the applicant had misrepresented her employment.
(Department of Justice) The officer was simply providing reasons as to why the applicant was not being afforded a procedural step to which she was not otherwise entitled. The excerpt above demonstrates that the officer’s decision was founded in part on the possibility that the applicant had co-opted the verifying authorities.
What this shows is that it is possible to challenge the misrepresentation findings out of visa posts.  I personally think that it is completely unreasonable for visa officers to write a fairness letter and then say afterwards that documents submitted in response to the fairness letter will be given little weight because they were in response to the fairness letter.  It completes defeats the point of a fairness letter, and I am glad that people are challenging it.

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